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12/09/87 Ralph Heston, v. the Industrial Commission

December 9, 1987

RALPH HESTON, PETITIONER-APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (OWENS-ILLINOIS, INC., RESPONDENT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

517 N.E.2d 632, 164 Ill. App. 3d 178, 115 Ill. Dec. 221 1987.IL.1810

Appeal from the Circuit Court of Madison County; the Hon. Nicholas G. Byron, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. BARRY, P.J., and WOODWARD, McCULLOUGH, and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Petitioner Ralph Heston allegedly injured his back on February 28, 1981, while repeatedly lifting 100-pound molds for respondent Owens-Illinois, Inc. An arbitrator found that petitioner suffered a compensable injury and awarded $286.67 per week for 20 5/7 weeks as temporary total disability benefits, and for 25 weeks as permanent partial disability benefits to the extent of 5%, plus medical expenses. The Industrial Commission reversed, finding no causal connection between the February 28 incident and petitioner's condition. The circuit court of Madison County reversed the Commission's decision, and respondent appeals.

Petitioner, a mold maker, worked on February 27, 1981, from 3:30 p.m. until about 12:30 a.m. on February 28. At that time, petitioner complained to his supervisor of back pain, and he was allowed to go home. Petitioner's duties that day required that every 12 minutes he lift molds weighing 75 to 100 pounds.

On March 1, petitioner helped a friend, Frank Haines, move a desk which Haines was buying from Noble Wyatt, a supervisor for respondent. Petitioner testified that the desk weighed about 100 pounds and was awkward to carry. He was taking muscle relaxants on that day, but still experienced back pain while carrying the desk. Petitioner also testified that he did not see a doctor regarding his back injury of February 28 until March 4 because he had to report for jury duty on March 2 and 3.

Wyatt testified for respondent that the desk which petitioner moved measured 60 inches on one side, and weighed between 150 and 200 pounds. Petitioner and Haines carried the desk up about 12 steps from Wyatt's basement. They found the desk would not fit through a doorway. For approximately 15 minutes, petitioner stood on the stairway supporting the desk on his knee while Haines removed the desk's legs. The two men took the desk back down the stairway, turned it, and again carried it up the stairway. Petitioner and Haines then carried the desk down the driveway and lifted it into a truck. Wyatt testified that petitioner made no complaints of physical discomfort or pain that day.

On March 4, petitioner went to work, but his back "gave out" on him. He reported to the nurse that he strained his back lifting molds. The company doctor noted paravertebral muscle spasms and advised petitioner to go home for a few days. On March 9 and March 11, petitioner again saw the company doctor, who released petitioner for work. The doctor indicated he believed that petitioner might be exaggerating his complaints. Petitioner refused to return to work and instead went to see his family physician, Dr. Tanin Parich.

Petitioner told Dr. Parich of the February 28 incident, and of a previous back injury which occurred five or six years earlier. Dr. Parich diagnosed acute left sciatic neuritis. Petitioner was hospitalized from March 13 to March 19 for physical therapy and tests. The discharge diagnosis was acute lumbosacral spine strain without encroachment of the nerve root, and degenerative change of the lumbosacral spine.

Petitioner continued to receive treatment from a chiropractor, Dr. Gerald Bemis, until October 30, 1981, when Dr. Bemis opined that petitioner had reached maximum improvement. Dr. Bemis' diagnosis was severe spraining of the lumbosacral area with resultant left sciatic neuralgia. Dr. Luebbert, an osteopath, examined petitioner on July 30, 1981, at the request of petitioner's attorney. Dr. Luebbert diagnosed a lumbosacral sprain with a possibility of a herniated lumbar disc. Dr. Marshall Conrad examined petitioner on October 2, 1981, at the request of respondent. Dr. Conrad found no objective abnormal physical findings and expressed the opinion that petitioner could return to work after an additional two weeks of physical therapy and the fitting of a corset for low back support.

At the arbitration hearing on April 7, 1982, petitioner testified that his left leg was numb, he had no feeling in his toes, and he could not stand for long before his back started hurting. On May 14, 1982, the arbitrator awarded benefits to petitioner, finding that the onset of back pain following repeated heavy lifting was an accident which arose out of and in the course of petitioner's employment.

On September 7, 1984, the Commission reversed the arbitrator's decision after finding that petitioner failed to prove a causal connection between the accident of February 28, 1981, and the condition of ill-being complained of by petitioner. On November 14, 1986, the trial court reversed the Commission's decision ...


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